The High Court has overturned a Circuit Court order which previously endorsed a man’s ‘right to be forgotten’. The man in question was Mark Savage, who had stood as an Independent candidate in North Dublin local elections in 2014. Mr Savage had launched a claim against to have information posted about him on the internet forum Reddit removed. The information in question was a thread which referred to him as ‘Mark Savage – North County Dublin’s homophobic candidate’. The perceived source of this label was leaflets which Mr Savage had handed out during the election process. These leaflets contended that ‘gay perverts cavorting en flagrante on the beach in broad daylight’ depreciated the institution of marriage. Mr Savage has often proclaimed himself as a very religious man and has often posited as very traditional in his understanding of marriage.
Mr Savage complained to the Data Commissioner and sought to have the thread removed, claiming it was defamatory. He also attempted to dispel comments that he was homophobic, by arguing that being ‘disgusted’ by gays was mutually exclusive from hating them. However the Data Protection Commissioner failed to agree with this. The Commissioner stated that Google’s failure to re-index the thread did not breach any Data Protection Acts.
Mr Savage subsequently brought proceeding to the Circuit Court seeking the ‘right to be forgotten’. The case primarily revolved around the interpretation of the Data Protection Acts as well as the decision in the Google Spain case. The aforementioned case held that a person could have personal data held by a third party web page delisted from a search engine. Justice Elma Sheehan applied the ruling in this case and found that Mr Savage was entitled to have the thread delisted from Google. She reasoned that it was likely internet users would refer to online forums in judging a person’s character and would most likely treat these as verified facts. This could potentially damage Mr Savage’s reputation and thus both his fundamental rights and interests were affected. Justice Sheehan ordered the thread to be removed.
However the High Court has recently overturned this ruling. In court Mr Justice Michael White found that the Circuit Court had not properly applied the jurisprudence in the Google Spain case. Also they had not successfully found any error of fact or law within the Data Protection Commissioner’s decision. Furthermore, Justice White outlined that the thread in question had to be given proper context. He reasoned that the court had failed to take into account an underlying article search. Thus the Circuit Court had erred in law in holding the URL heading in isolation. Finally the order would force Google to engage in editing activities for its URLs and search engines, which the decision in Google Spain did not proscribe.
It is unclear whether Mr Savage will seek to appeal this decision. What is certain however is that it will be increasingly hard for him to forget this episode.
Daniel Forde – Law Editor